ROMESH KUMAR LAKRA Vs. BALDEV RAJ SAWHNEY

JUDGEMENT

(1.) This is a petition filed in terms of Sub-Rule 2 of Rule 11 of Order 21, Code of Civil Procedure, (hereinafter called the Code), for execution of a decree passed by this Court in Civil Original Suit No. 4 of 1968. This suit was filed by the non-applicant No. 1, Baldev Raj Sawhney, for declaration that partnership business of National Arms Co. as constituted by Partnership Deed dated 6th April, 1962, be declared as dissolved. Besides this, a relief of settlement of accounts was also sought by the plaintiff. Besides the applicant, Romesh Kumar Lakra, non-applicants 2and3 were arrayed as defendants in that suit. The parties to the suit compromised and as a result of that compromise a consent decree came to be passed on 6th of October, 1969. The relevant paras of the decree are as under :-1. The plaintiff Shri Baldev Raj Sawhney should deliver at actual cost price fifteen guns a month manufactured in that factory "The National Small Arms Co" to Sh. R. K. Lakra, defendant No. 1, who shall be bound to make cash down payment for the same;2. The condition No. 1 shall remain in-force till the factory National Small Arms Co. remains in existence;3. That in case the Central Government or the Government of Jammu and Kashmir reduces the existing licenced quota of production of Four hundred guns per month by the National Small Arms Co. the supply of fifteen guns by the plaintiff to defendant No. 1 as mentioned in condition No. 1 above will be decreed proportionately from the date of such reduction;4. That from this day Shri R. K. Lakra defendant No. 1 or his father Shri Ragunath Dass Lakra, or their heirs shall have no interest or concern whatsoever in the joint business of the "National Small Arms Co. nor will be that entitled interference with the business of the factory, the licence that was obtained by defendant No. 1 in the name of the company and which is being renewed by the plaintiff shall be of the plaintiff or the firm and Shri R. K. Lakra or his heirs shall have no right or concern with it;5 That the plaintiff shall pay ten thousand in cash to the defendant No. 1 and also deliver to him the aforesaid number of guns within fifteen days from today;6 That Sh. R. K. Lakra defendant No. 1 shall produce before plaintiff a 'No objection certificate' from the authorities and send the same to the plaintiff and the latter shall supply fifteen guns monthly within a month from the date of the receipt of the No objection certificate on payment of price thereof to the defendant. In default of supply of the same the defendant No. 1 shall be at liberty to collect these guns by taking out execution proceedings every month;7.That, if at anytime the plaintiff and defendant No. 1 are not able to agree as to the actual cost price of a gun the matter shall be referred to arbitration. Each of the parties i.e. the plaintiff and defendant No. 1 shall be entitled to nominate his own Arbitrator, but in the first instance Sh. I. D. Grover, Advocate will be the Arbitrator of defendant No. 1 and Shri S. P. Gupta Advocate will be the Arbitrator of the plaintiff. In case of death of one or both of the arbitrators the parties concerned shall be entitled to nominate suitable arbitrators. These arbitrators shall be treated as the arbitrators of the parties;8. That if the factory 'National Small Arms Co.' remains closed due to a strike, lockout or any riots or any reasons beyond the control of the company for more than fifteen days, the supply of the guns will be reduced proportionately.9 That in case Sh. R. K. Lakra defendant No. 1 refused to take delivery of the said guns in any month the plaintiff shall be at liberty to dispose off the same by sale or by any other appropriate method and the sale proceeds shall be the property of the plaintiff;10 That in case Shri R. K. Lakra refused to take the delivery of the aforesaid number of guns for three consecutive months he shall not be entitled to take the delivery of that forty five guns @ 15 guns a month in the next following months;11 That civil suit No. 51 entitled Shri Raghunath Dass Lakra versus Sh. Baldev Raj Sawhney for Rs. 3600/- instituted on 19-11-66 and pending in the Court of City Judge Jammu shall stand dismissed and consigned to record in full satisfaction.12 That the civil suit No. 18 entitled M/s. National Small Arms Co. v. R. K. Lakra and Co. for Rs. 10,500/- filed on 1-10-66 in the Court of District Judge Jammu shall also stand dismissed and consigned to records in full satisfaction."

(2.) According to the decree-holder the agreement made under the consent decree worked well between the applicant and non-applicant No. 1 upto ending September, 1988. It was after Sept. 1988 that the judgment-debtor refused to deliver the number of guns in terms of the decree. Therefore, this execution petition.

(3.) Objections to the execution petition were filed in which it was maintained that the shareholders of National Small Arms Co. Pvt. Ltd. have transferred their shares in favour of different persons. National Small Arms Co. is not existing any more. On the other hand new share-holders converted the business concern into a Private Limited Company, known as Bharat Small Arms. This was done under the relevant provisions of the Companies Act. As National Small Arms Co. has ceased to be in existence and Baldev Raj Sawhney had no interest left in the business concern after he made the transfer of shares by sale, therefore, any promise or stipulation contained in the decree against Baldev Raj Sawhney would not be binding upon the management of the Bharat Small Arms Company.